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International Special Events and Recreation Association, Inc. v. Bellina

Florida Court of Appeals, Fifth District

April 28, 2017

INTERNATIONAL SPECIAL EVENTS AND RECREATION ASSOCIATION, INC., PRIME INSURANCE COMPANY AND CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER LAP0334, Petitioners,
v.
MATTHEW BELLINA AND SURF SLIDE, LLC, Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Petition for Certiorari Review of Order from the Circuit Court for Brevard County, George B. Turner, Judge.

          Erin M. Raschke, Matthew L. Litsky, and Sarah B. Van Schoyck, of Phelps Dunbar LLP, Tampa, and Elizabeth K. Russo, of Russo Appellate Firm, P.A, Miami and Green & Ackerman, P.A., Boca Raton, for Petitioners.

          Robert P. Major, of Ver Ploeg & Lumpkin, P.A., Orlando, for Respondent Matthew Bellina. No appearance for other respondents.

          OPINION

          PALMER, J.

         International Special Events and Recreation Association, Inc. (ISERA), Prime Insurance Company (Prime), and Certain Underwriters at Lloyd's London Subscribing to Policy Number LAP0334 (Underwriters) (collectively, Insurers), filed a petition seeking a writ of certiorari quashing the disposition portion of the circuit court's order which addressed their respective motions to dismiss the complaint for declaratory relief filed by Respondent, Matthew Bellina (Bellina). We grant the petition and quash the disposition portion of the trial court's order.

         Bellina filed a personal injury lawsuit against Surf Slide, contending that he was injured, in part, as a result of Surf Slide's negligence. While that suit was pending, Bellina filed a Complaint for Declaratory Relief alleging, in pertinent part, that:

[a]s a third party beneficiary under the [Insurance] Policy [issued by Insurers to Surf Slide], Matthew Bellina is entitled to bring this action in this Court, to obtain a judicial declaration resolving the question whether the [Insurance] Policy issued by the [Insurers] to Surf Slide provides coverage to Surf Slide for Matthew Bellina's bodily injury claim and suit against Surf Slide.

The complaint acknowledged the existence of Florida's Nonjoinder Statute, section 627.4136, Florida Statutes (2016), which provides, in pertinent part:

627.4136. Nonjoinder of Insurers
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2). . . No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

         However, the complaint averred that section 627.4136 did not apply to the instant law suit because Insurers are surplus lines insurers governed by section 626.913(4) of the Florida Statutes (2016). That statute provides:

626.913 Surplus Lines Law; short title; purposes

. . . .

(4) Except as may be specifically stated to apply to surplus lines insurers, the provisions of chapter 627 do not ...


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